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City Manager Gives Thumbs Down to Ballot Measures

Tuesday July 13, 2004

A proposed November ballot initiative billed as an antidote to Berkeley’s strict laws regulating the cultivation of medical cannabis plants would also allow cannabis clubs carte blanche to sprout along commercial corridors, according to a critical report released last week from City Manager Phil Kamlarz. 

Two other citizen-initiated measures heading for the November ballot also received hostile reviews from city staff. 

Berkeley could become the Bay Area’s “prostitution destination point,” Kamlarz wrote, should citizens pass a measure that among other things would make police enforcement of prostitution its lowest priority. A third measure to create a Berkeley Tree Board regulating public trees is of dubious legality and would cost the city up to $250,000 a year, according to a separate report from the city manager, contested by the ordinance’s author. 

None of the initiatives is expected to win approval from the City Council, which—if it doesn’t pass the initiatives outright—is required to place them on the November ballot for voters to determine their fate. 

Marijuana and prostitution are no strangers to the City Council. In previous sessions, the council rejected compromise proposals that didn’t go as far as the current initiatives. 

Last May the council tabled a proposal to raise the limit on marijuana plants a licensed patient is legally able to grow from 10 to 72, the same number permitted in Oakland. 

In response, cannabis advocates have produced the Patient Access to Medical Cannabis Act of 2004. The measure abolishes limits on plants, requires the city to provide medical cannabis to patients if federal authorities crack down on dispensaries, gives legal standing to a peer review committee to oversee the clubs and—perhaps most significantly—gives cannabis clubs by-right use permits in commercial zones. 

Zoning rules in Berkeley for cannabis clubs have been murky ever since California voters passed the Compassionate Use Act of 1996. The city’s three established marijuana distributors and any new clubs are labeled as miscellaneous retail establishments and require an administrative use permit that can be appealed to the Zoning Adjustment Board. 

Earlier this year, the city’s oldest dispensary, The Cannabis Buyers Cooperative (CBCB), ran afoul the city’s Planning Department and South Berkeley neighbors when it sought to move its operations from Shattuck Avenue to a blighted section of Sacramento Street near Ashby Avenue. 

The city revoked CBCB’s administrative use permit on Sacramento Street, costing the operation about $10,000, according to cooperative member James Blair. The CBCB opted not to appeal its case to the Zoning Adjustment Board, but after witnessing the council reject previous zoning suggestions from cannabis activists since 1996, the organization is counting on the measure to make its next move less of a hassle. 

“Eight years is a long time for the City Council to do nothing,” Blair said. “It’s their own fault. If they have something better, I suggest they put it forward quickly.” 

The concern over zoning is so acute that Councilmember Dona Spring, traditionally the staunchest supporter of liberal medical cannabis laws, opposes the initiative. 

Also, with Oakland having recently passed a law limiting the number of pot clubs, Councilmember Linda Maio has expressed concern that Berkeley could face a parade of Oakland clubs setting up shop in Berkeley. 

Don Duncan, director of the Berkeley Patient’s Group, counters that the peer review committee legitimized by the measure would keep clubs in check. 

“The city assumes a certain degree of ill will from dispensary operators, but that’s not the case,” he said. The committee would never have allowed the CBCB to relocate to Sacramento Street, he said. “No one thought it was a good idea except for a couple of people at that dispensary.” 

City staff also offered dire warnings on a proposed prostitution initiative. The measure, authored by the Berkeley-based Sex Workers Outreach Program, would require the council to lobby Sacramento to decriminalize prostitution and make the world’s oldest profession the lowest priority for Berkeley police.  

Kamlarz argued that local decriminalization would result in an influx of prostitutes and johns, higher levels of robberies, sexual assaults, thefts, batteries/assaults, noise and disturbing the peace calls in South and West Berkeley. 

Although the report argued the initiative could limit police enforcement activities, Berkeley Police spokesperson Joe Okies said the department would continue to operate stings in areas that receive complaints about prostitution. He said the BPD has received approximately 275 complaints this year and has made 48 arrests of prostitutes and johns. 

When it comes to saving the city’s 40,200 public trees, the staff said a proposed tree ordinance would cross cut city laws. With the city failing to stop the destruction of numerous trees in the downtown several years ago and with more trees slated for removal in the near future in the Berkeley Marina, local environmentalist Elliot Cohen decided to take the long battle for a city tree ordinance to the people. 

Dubbed the Public Tree Act of 2004, Cohen’s proposal creates a new board to encourage the planting of healthy trees and regulate changes to trees on public land. Anyone who wanted to work on a public tree would have to get a license from the tree board, and any development that might affect a public tree would require a “tree impact report.” 

But according to the city attorney’s office, the proposed ordinance would interfere with the council’s authority over city property, forcing it to get tree board permission to remove public trees. Also, by specifying that the Tree Board receive two staff members and mandate a specified number of trees be planted annually, the ordinance would interfere with the city manager’s charter authority to administer city departments and personnel. 

Kamlarz estimated the cost of the proposed new Tree Board would run to $250,000. To provide staffing, he said, the city would have to transfer two Parks and Recreation Department employees. If those employees came from the Forestry Division, the result would be 20 percent less maintenance work performed on public trees, the city manager wrote. 

Cohen, however, argued that city staff had misread his initiative and were inflating the cost as part of a campaign of scare tactics.  

He said his proposal capped staffing at two full-time employees ($200,000) but under normal circumstances the Tree Board would only require about one quarter to one-half time for one staff member. He also said the board shouldn’t require $50,000 in administrative overhead costs, as the city projected, since the initiative calls only for using existing city resources. 

“There’s no reason why something that already exists should cost $50,000,” he said.ô